Zara Nicholls v Tocler Holdings Pty Ltd T/A SBA Supplies

[2015] FWC 7132

[2015] FWC 7132

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Zara Nicholls
v
Tocler Holdings Pty Ltd T/A SBA Supplies
(U2015/10233)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 19 OCTOBER 2015

Application for relief from unfair dismissal.

[1] Ms Zara Nicholls alleged the termination of her employment by Tocler Holdings Pty Ltd was unfair. In her application, she advised that she commenced employment on 19 January 2015 and her employment ended on 21 August 2015.

[2] An employee is required to have served six months (one year if employed by a small business) employment to be protected from unfair dismissal. Section 383 of the Fair Work Act 2009 (the Act) provides as follows:

“The minimum employment period is:

(a) if the employer is not a small business employer—6 months ending at the earlier of the following times:

(i) the time when the person is given notice of the dismissal;

(ii) immediately before the dismissal; or

(b) if the employer is a small business employer—one year ending at that time.”

[3] A small business employer is defined at section 23 of the Act as follows:

“Meaning of small business employer

(1) A national system employer is a small business employer at a particular time if the employer employs fewer than 15 employees at that time.

(2) For the purpose of calculating the number of employees employed by the employer at a particular time:

(a) subject to paragraph (b), all employees employed by the employer at that time are to be counted; and

(b) a casual employee is not to be counted unless, at that time, he or she has been employed by the employer on a regular and systematic basis.

(3) For the purpose of calculating the number of employees employed by the employer at a particular time, associated entities are taken to be one entity.

(4) To avoid doubt, in determining whether a national system employer is a small business employer at a particular time in relation to the dismissal of an employee, or termination of an employee’s employment, the employees that are to be counted include (subject to paragraph (2)(b)):

(a) the employee who is being dismissed or whose employment is being terminated; and

(b) any other employee of the employer who is also being dismissed or whose employment is also being terminated.”

[4] Mr Anthony Smith, the Managing Director of Tocler, gave evidence that Tocler had no associated entities.

[5] In determining whether Ms Nicholls has served the minimum employment period, no assessment has been made about the merits of her case. The Commission has no discretion to waive the requirements of the Act.

[6] Ms Nicholls gave evidence that at the time of her dismissal there were 15 employees. In her witness statement she included one employee whose “final date of employment was extremely close to her dismissal.” Ms Nicholls accepted the last day of that employee’s employment was two weeks before her dismissal.

[7] Ms Nicholls also included another employee. Tocler provided a copy of his resignation letter and his last day of employment was one week before she was dismissed.

[8] Ms Nicholls accepted that if either of these employees was not employed at the date of her dismissal, then Tocler had less than 15 employees at the time of her dismissal.

[9] On the evidence before the Commission, I find that Tocler at the time of Ms Nicholls’ dismissal had less than 15 employees and therefore Ms Nicholls had not served the minimum employment period at the date of her dismissal and therefore she is not protected from unfair dismissal. Ms Nicholls’ application for unfair dismissal remedy must therefore be dismissed.

DEPUTY PRESIDENT

Appearances:

Ms Z Nicholls on her own behalf.

Mr A Smith on behalf of the Respondent.

Hearing details:

2015.

Melbourne and Perth (video hearing):

October 15.

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